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What Liberal Constitutionalism Has Going For It

By Jack M. Balkin

I would amend Orin Kerr's remarks about liberal constitutionalism slightly. There are three things liberal constitutionalism has going for it, three reasons why it is superior to the snake oil that Justice Scalia has recently been selling in public.

First, liberal constitutionalism is committed to protecting people's rights-- rights that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women. Justice Scalia's originalism can't account for many of these results except as mistakes made by previous judges that we are stuck with. Orin rightly emphasizes the power of the populist belief that We the People decide how we will govern ourselves. I would add that belief in basic rights as every bit as populist-- and deeply rooted in American traditions-- as belief in majority rule. The Declaration speaks of equality and inalienable rights even before it talks about the consent of the governed. It tells us that protecting rights is why governments are formed. We live in a rights culture; people don't like it when their rights are abridged. And history shows that Americans will fight for their rights if they believe that governments threaten to abridge them. Protection of rights and consent of the governed are two key ideas of the Declaration. We must keep both in mind in understanding why our Constitution is great.

Second, Scalia's story about America is deeply pessimistic. As he has written, the Constitution is a set of constraints designed not to permit evolution but to prevent rot. We stick to the original expected application because the founders feared a more brutal time and wanted us not to become worse than them. But Americans are optimistic: they believe that America can and will get more just and more free over time. They think of history as a continuous struggle for greater justice and equality. That is why they are proud of Brown v. Board and the civil rights movement: both symbolize the progressive story of American history. Liberal constitutionalism is at its most appealing when it is most optimistic about the country and about its improvement through history. Those changes came both through new laws passed with the consent of the governed and through the judiciary's expansion of constitutional rights. The two trends are not opposed. They work together. The judiciary expanded constitutional rights as the country demanded greater recognition for those rights. That is the real story of the Civil Rights era. In this sense, there is no contradiction between the Declaration's two great ideas.

Third, Orin is right that Americans believe strongly in democracy. What most Americans may not realize, however, is that a commitment to original expected application, taken seriously, limits democracy because it drastically restricts the power of national majorities to protect citizens and prevent abuses and injustices. Scalia's model of original expected application casts into doubt many of the democratic achievements that Americans have come to expect and are proud of. If you apply the constitution the way the framers expected, the Civil Rights Act of 1964 is unconstitutional. So too would be national environmental laws, federal consumer protection laws, federal protections against sweatshops and employer abuses, even Social Security.

Scalia well knows that strictly applied, his version of originalism produces results that would be unpalatable to most Americans. He accepts the New Deal not because he thinks that it is faithful to the original meaning but because he agrees that we have to keep the nonoriginalist precedents that permitted it around. They are all mistakes but we have to accept them. So he routinely accepts expansive federal power that is well beyond what the framers would have imagined. That is why he calls himself a "faint hearted originalist." But "faint hearted" is another way of saying "my principles are wildly unrealistic and I throw them out the window whenever they would be too politically embarrassing."

In fact, Scalia isn't really an originalist at all. He is what I would call a "New Deal/Brown originalist." That is, he is a conservative who accepts the New Deal and very basic elements of the civil rights revolution because all Americans have come to accept them, but insists that we go no further down that road. Scalia is not defending the framers; he's actually defending a conservative version of the constitutional status quo circa 1960. There is no particular reason to defend the Constitution of 1960 from further change. It is certainly not the framers' constitution. And it is not our Constitution.

Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application: Affirmative action and commercial speech are two examples; Bush v. Gore is another. Scalia says that his philosophy leaves decisions to We the People, and only imposes limits the framers would have imposed. To quote his own opinion in Lawrence v. Texas: Do not believe it. Scalia picks and chooses when to apply his originalist rhetoric, to strike down laws he opposes and uphold laws that he likes or that he realizes would be to embarrassing to strike down. There are several things we might call this, but judicial restraint isn't one of them.

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

Perhaps most important, these principles aren't particularly liberal principles. They are constitutional principles that both liberals and conservatives can accept. If you wanted a slogan for a twenty first century constitutionalism, that would be a pretty good start.

Full post as published by Balkinization on May 12, 2008 (boomark / email).